So, Trump has declared that he has the power to pardon himself, and a lot of very serious people are scratching their heads and some are saying it’s an open question. In terms of statutory language and precedent, the question is maybe a blank slate where the normal tools of legal analysis don’t shed much light. The analysis I’ve seen, however, seems to look at the law as an abstraction with right and wrong answers hidden in the back closet somewhere. And that’s the wrong way to look at the law. As a younger lawyer, I had this vague notion that I could work cases like a geometry proof — if I cited cases with the correct language, then the court had no choice but to find in my favor, irrespective of the real world consequences and subjective concerns like the perception of fairness. But that’s not how it works.

The law has no independent existence. We have to give it power. In my role as an attorney for the Legislative Services Agency, I wrote statutory language on my computer. The words were conjured up in my head. But that didn’t mean I was personally creating law. The process of going through committee hearings, through one chamber, then the other and then past the governor, full of people who had been elected to the position — that’s the magic dust that turned the words I typed on my computer into law binding on the entire community. And, even then, the process wasn’t done — there is a huge apparatus of judges, law enforcement officials, and other bureaucrats who give life to the law. Ultimately, the law lacks meaning unless enough of us believe in its legitimacy.

Does a self-pardon have that sort of legitimacy? Can you point convincingly to the intent of the Founding Fathers to create an executive who could pardon himself for his own crimes? No. They were attempting to move away from monarchy, not toward it. Can you point to good policy reasons for giving a person the power to excuse himself from obeying the law? No.

Of course you’ll have partisans who will twist and turn and desperately contort their principles in an effort to make it o.k. But, any fair minded person is going to agree that, if the rule of law means anything, it means that a citizen will not sit in judgment of him or herself while everyone else is subject to the force of external legal processes. Of course, the law could obviously be circumvented by an amoral executive, a feckless Congress, and a complicit judiciary. The primary remedy for that is at the ballot box.

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Sheila and Tipsy have recent posts that perhaps oddly seemed to mesh in my mind as having a theme in mind. Tipsy’s post touched on the role of Hell in Evangelical cosmology. This part stood out:

In fact, despite my own Calvinist background, just about the only people in these debates about hell who totally creep me out are those who seem to feel some deep emotional need for hell to exist and for most people to go there. This classic statement from Section VII of Article III of the Westminster Confession (which Confession I loved and which statement I accepted, albeit with little enthusiasm) captures something of that feeling:

The rest of mankind God was pleased, according to the unsearchable counsel of His own will, whereby He extendeth or withholdeth mercy, as He pleaseth, for the glory of His sovereign power over His creatures, to pass by; and to ordain them to dishonour and wrath for their sin, to the praise of His glorious justice.”

(Emphasis added) Maybe I’m reading it anachronistically, but that bolded phrase now gives me the willies. Eternal wrath and “glorious justice” seem difficult to reconcile in a way that would permit a decent human being, at least in our current state of seeing as through a glass, darkly, to exult in anyone’s eternal torment.

Meanwhile, Sheila quoted from Michael Gerson, former speech writer for George W. Bush, and discussed the struggle, perhaps the impossibility, of reconciling principled conservatism with Trumpian Republicanism. Principled conservatism has something to say about the desirability of tariffs and regulating immigration. But Trump isn’t coming at this from an angle that has anything to do with considered policy positions. She quotes Gerson as saying:

Trump’s policy proposals — the details of which Trump himself seems unconcerned and uninformed about — are symbolic expressions of a certain approach to politics. The stated purpose of Trump’s border wall is to keep out a contagion of Mexican rapists and murderers. His argument is not taken from Heritage Foundation policy papers. He makes it by quoting the racist poem “The Snake,” which compares migrants to dangerous vermin. Trump proposes to ban migration from some Muslim-majority countries because Muslim refugees, as he sees it, are a Trojan-horse threat of terrorism. Trump’s policy ideas are incidental to his message of dehumanization.

Both of these put me in mind of history books I’ve read which talk about the back and forth in Western European Christianity between the intellectual doctrine guiding Church leaders versus the more emotion-based narratives that motivated the rank & file. (I’m fairly certain I’ve read of similar dynamics for other religions, but Western European history is more home turf for me.) While scholars attempt to divine God’s will through carefully approved texts, the rank & file might be more appreciative of adventure stories featuring Saints. While intellectuals grapple with what it all means, the common person was more likely looking for something to help with the random horrors of day-to-day life. There often seemed to be a back-and-forth as the Church went up and down the spectrum from intellectual rigor to satisfying the emotional needs of adherents.

For those who value their faith more as an emotional balm than as an intellectual exercise, Hell often seems not to be incidental to God’s glorious justice. For too many people, punishing those who broke the rules and the smug satisfaction it brings to those who chose correctly is practically the whole point of the exercise.

I believe similar tension exists between principled conservatives and those who think a Trump Presidency is a good idea. Intellectually, tariffs and stronger immigration policy might have their place in the conservative toolbox but only where analytically necessary. For Trump, the positions seem no more rigorous than Gollum’s opinion of hobbits:

They’re thieves. They’re thieves, they’re filthy little thieves. Where is it? Where is it? They stole it from us. My Precious. Curse them, we hates them! It’s ours it is, and we wants it.
. . .
We wants it. We needs it. Must have the precious. They stole it from us. Sneaky little Hobbitses. Wicked. Tricksy. False.

And this has appeal to many Trump supporters in a way that Heritage Foundation papers don’t. They feel that the world has wronged them and seek a vent to this rage. Whether that vent is productive or intellectually coherent is quite beside the point. Perhaps any organization based on ideology is going to bounce between id and superego.

(The more I think of it, the more the Gollum analogy holds up better than it should. Gollum had a legitimate beef about Bilbo’s “what I have I got in my pocket?” question during the riddle game. Total b.s. as a riddle. But, looking at the larger picture, Gollum only had the ring because he murdered Déagol to get it, and his efforts to reclaim it were antisocial and counterproductive. Hopefully the Trump Presidency is merely the finger we have to sacrifice on the road to wise leadership and a more just future. If that’s going to happen in 2020, we’re still waiting for Aragorn to emerge from the wastelands.)

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One of my favorite news sites is Cracked.com, a comedy site. I don’t know if it’s the old thing about the jester being able to speak truth to power or the lack of a particular axe to grind that makes me find it more informative than a lot of straight news and commentary places. A podcast they aired in March 2016 was a discussion about how bad America is at talking about class (and how that contributed to the rise of Trump). We like to pretend that we’re essentially a classless society, a meritocracy where people rise and fall according to their own abilities. We pretend that social class and wealth are pretty much the same thing. The podcast also talked about how we get a lot more riled up by people in the social class adjacent to us than we do by social classes who are a couple of steps removed. (So, the gentry (upper middle class) tend to get more pissed about acts from the upper class than the lower middle class might.) Social classes who are a few steps removed are more cartoonish abstractions than real threats to your way of life. The podcast website linked to an interesting essay entitled, “I can tolerate anything except the out-group.” The out group is going to be one that’s close to home. The author references what Freud described as the narcissism of small differences:“it is precisely communities with adjoining territories, and related to each other in other ways as well, who are engaged in constant feuds and ridiculing each other.”

I had that on my mind as I read a column by Matthew Walther singing the praises of Chuck E Cheese as one of the best bars in America (h/t Tipsy). Says Walther:

Another great thing about Cool Chuck’s is that it is almost totally free of upper-middle-class white liberals, the most dangerous and annoying class of persons in America. They would have no reason to go. By the time ordinary people’s children are ready to enjoy the lights and ball pit, theirs are already studying for the LSAT and brushing up on calculus at bespoke magnet preschools. Besides, it is a place that serves real pizza, with pepperoni and mozzarella cheese, not the flatbread creations topped with avocadoes or peaches or goat cheese or broccoli or all four, which they pretend to like for the same reasons they feign enjoyment of prestige cable dramas instead of just watching Sanford and Son reruns. Also: Dylan and Heather already have iPads stuffed with classical music apps, so the games aren’t a draw either. More for the rest of us.

The other parents at Chuck E. Cheese’s are normal, emotionally well-adjusted, spiritually and morally upright working people happy to have found this little low-cost slice of Eden. We have great conversations about things like God, sports, and the difficulties of raising a family in the country’s most expensive metropolitan area.

He also proclaims that “macro brews” are “real beer,” and sneers at craft beer. This focus on seeming trivialities like what kind of pizza or TV shows people watch while the world burns, foreign relations deteriorate, health care is on its way to becoming a distant dream, and the White House is occupied by a person who lacks the emotional discipline to run the country seems like madness. But, it’s not about the pizza. It’s not even about God. It’s about social class and antipathy toward the adjacent social class.

So, when we start calling each other hypocrites it’s often because we weren’t really talking about those things we said out loud. A lot of the folks talking about the need for a leader to share their Christian values were able to vote for Trump because they weren’t really talking about the need for moral probity in a leader. They were talking about wanting the kind of guy who reflected their social class — or at least pissed off the social classes that they hated. That’s what the talk about Obama eating arugula and Trump eating burnt steaks with ketchup is all about.

When the talk radio guys talk about “elitism,” they’re not talking about money and they’re not talking about the super-wealthy. They’re talking about the professional classes that are adjacent to and piss off the social class immediately below them — what I’ve been calling the gentry. When the gentry hear “elite,” they think about the billionaires and such things as the Wall Street casino. But that’s not primarily what the talk radio guys are getting at. They’re pushing the emotional buttons of the working class white listeners hard enough to get them to listen through the next Gold Bond commercial. And it’s the narcissism of small differences that triggers that emotion. So, when I — as a member of the gentry — turn up my nose at Bud Light and reach for a Sierra Nevada Pale Ale, it’s probably a worse affront than legislator who votes for a tax cut that benefits the billionaire at the expense of the extreme lower class.

I don’t want this to be read as saying “Both Sides ™ are equally to blame” or as a plea to ignore horrible policy ideas in favor of becoming unified and singing kumbaya with the people who advocate those horrible policy ideas. But understating the emotional landscape in which we’re operating is important.

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Apparently Sen. Donnelly is going to vote to confirm Judge Gorsuch to the Supreme Court seat left open when Justice Scalia died. There have been a lot of takes: Donnelly is a genius, Donnelly is going to get crushed, Democrats are taking the high road and will surely be rewarded. Anyway, here’s mine:

Judge Gorsuch seems perfectly competent but right wing. If George W. Bush had nominated him or if Justice Scalia’s seat had opened up during a Republican administration, there would be no controversy. But, it’s hard to escape the feeling that Senate Republicans are being rewarded for bad behavior. Their refusal to act on the nomination of Merrick Garland is the elephant in the room here, so to speak. That’s what puts Donnelly in a lose-lose position.

If he stands with a filibuster of Gorsuch’s nomination, the Senate probably changes its rules and confirms him with 51 votes. The idea that Sen. Donnelly and the Democrats will successfully filibuster Gorsuch until Trump nominates someone more palatable seems unlikely. On the other hand, I think it’s pie-in-the-sky to think many people are going to reward Sen. Donnelly or the Senate Democrats for not being obstructionists. On the conservative side, those voters who would be likely to vote against Sen. Donnelly based on filibustering Gorsuch aren’t likely to vote for him based on his favorable Gorsuch vote. Meanwhile, liberals are angry because the Senate Republicans obstructed President Obama’s nomination and because the Trump administration is just horrible overall. Even if Sen. Donnelly’s vote is only conceding the inevitable, they will see it as a sign that Sen. Donnelly isn’t really on their side.

Ultimately, Sen. Donnelly is a Democratic Senator in a red state. He’s making a political calculation on what will hurt him less. I think it was a coin toss for him.

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I don’t know the specifics, but Texas apparently wants to be more restrictive than Indiana on allowing women access to abortion services. They had a bill ready to go in a special session that was set to end at midnight last night. The Texas Senate just barely missed the deadline due, mostly, to a filibuster by state Senator Wendy Davis.

Through procedural methods probably most of them don’t even fully understand, Davis’ filibuster was broken – but that required a lengthy, time consuming debate about the procedure now that it was broken. Then, in the final minutes, when the Senate was scrambling to get a vote in under the wire, protestors made enough noise to confuse the issue enough for the clock to run out. This bit caught my eye, and I’d be interested in the details:

Initially, Republicans insisted the vote started before the midnight deadline and passed the bill that Democrats spent the day trying to kill. But after official computer records and printouts of the voting record showed the vote took place Wednesday, and then were changed to read Tuesday, senators retreated into a private meeting to reach a conclusion.

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Derek Pillie, writing at Hoosier Access (a conservative blog on Indiana politics for those who are unfamiliar), has an entry on Rep. Marlin Stutzman’s activity with respect to the federal Farm Bill. The blog post cites an article by Gary Truitt in Hoosier Agriculture.

Two main parts of the Farm Bill typically get a lot of attention: the food stamp program and the subsidies and payments to farmers and agricultural interests. Pillie has an interesting construct in describing an amendment proposed by Stutzman. “Yesterday he filed amendments with the House Rules Committee that would split off entitlement programs from the agriculture programs.”

I presume “entitlement” programs are those with money for Them while “agriculture” programs are those with money for Us. Stutzman is certainly one of the “Us,” having received about $200,000 in farm welfare assistance for his own agricultural interests. Farmers are hard working and good whereas food stamp recipients are lazy and bad. That’s the economic morality play narrative that underlies the politics of this thing anyway. In my mind, the distinction between government money given to agricultural interests and government money given to feed people is tenuous and largely artificial. If you want to insist that non-farmers earn their own way or starve, then you probably ought to insist that agricultural interests profit or perish.

As I understand the conjoined history of the farm subsidies and food stamp program, it was a fairly simple proposition at first. We have farmers who can’t make money, and we have hungry people who need food. Lets give farmers money for their food and give food to hungry people. Divide that house, and both sides will probably fall. And, if you’re a small government purist, that’s probably a good thing. Otherwise, it probably looks like a recipe for unnecessary suffering all around.

In a sense, the Task Force’s attempt to tighten the reins is quite understandable. As noted above, copyright law attempts to protect expression by proxy through its embodiment in the physical world. The embodiment of expression in the physical world is becoming more and more tenuous, however, as digital technology grows. The capability to convey expression from one person to another is fast approaching direct exchange of thought without embodiment of an intermediate physical form. Or, at the very least, if the previous description seems too transcendental, the intermediate form of expression is becoming “liquid” where previous and current copyright law deals with a solid.

One can view the Task Force’s recommendation as akin to attempting to hold on to a melting object; one clutches it more tightly in a vain attempt to prevent it from falling to the ground. As John Perry Barlow puts it:

Since we don’t have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future on a sinking ship.

This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as without.

Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial.

The legal efforts attempting to reconcile digital technology with copyright law reflect a larger problem. It has always been the case that new technology creates unforeseen difficulties. In fact, Lewis Mumford suggested that the invention of the clock by and for the use of the monasteries led to their undoing. The new technology made it possible to abstract time in humans’ minds and, once abstracted, time could be controlled and regimented. Control and regimentation led to the rise of capitalism which in turn led to the decline of religion and the monasteries. While this description is something of an oversimplification, the main point is straightforward. New technology is created in pursuit of purposes which are consistent with the status quo, but aside from the original goals, the new technology also creates possibilities which challenge the status quo. Once these possibilities are available, humans naturally explore them and disrupt the established order with these new possibilities. The law can recognize this and embrace the new possibilities with as little disruption as possible, or the law can futilely attempt to barricade that which is new, different, and disruptive.

The video and musical recording industries have benefited from the development of digital technology. The technology allowed a cleaner and more refined sound and picture. But those industries will learn, if they have not already, that in addition to providing better pictures and sounds, digital technology allows nearly unlimited dissemination of works without any deterioration in quality. Interested parties, such as the established recording and movie industries and the authors of the Green Paper, would like to keep the intended benefits of digital technology–the improved picture and sound quality–while squelching the unintended disseminatory possibilities of the new technology.

This course of action is almost certain to fail. The law needs to adapt and embrace new technology, not become more rigid and try to withstand it. As the Court recognized in Sony:

From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment–the printing press–that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.

“The fortunes of the law of copyright have always been closely connected with freedom of expression, on the one hand, and with technological improvements in means of dissemination, on the other. Successive ages have drawn different balances among the interest of the writer in the control and exploitation of his intellectual property, the related interest of the publisher, and the competing interest of society in the untrammeled dissemination of ideas.”

Digital technology is a significant new means to disseminate information and it is time for copyright law to change accordingly. It is time for the law to recognize properly the media which it attempts to govern. If the law remains unchanged– attempting to govern as solid that which is essentially liquid–it will have to create an unnecessary and inexcusable scarcity of access to copyrighted works in order to work. This is so because current copyright law is premised upon a need (a need which is becoming less pronounced) for works to manifest themselves tangibly before communication between people is possible. Therefore, an artificial scarcity would arise in large part from precarious balancing acts which try to pay homage to the old ways, but which also attempt to recognize the new possibilities.

A concrete example of such a balancing act is a policy which allows the public to access a public digital library only from existing physical libraries. Such access would allow at least a slight improvement in the collections of existing libraries; it would make it at least theoretically possible for the public to have access to digital works by means of a computer terminal in the physical library; it would prevent the obsolescence of existing libraries by making them a legal requisite to digital library access; and inconvenient access would encourage the purchase of one’s own physical copy of the work. Unfortunately, these access requirements would also create inexcusable waste and unnecessary scarcity. The waste would arise from the inefficient movement of people to gain access. Direct distribution of digital works to the home would be just as cost effective, if not more so, than a more centralized method of distribution, such as a library or software store. Creating an informational bottleneck at the physical library would in turn create an unnecessary deprivation of knowledge for those without the time, inclination, or transportation necessary to reach a physical library capable of accessing the requisite information.

On a side note, I can’t believe it’s been sixteen years.

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Rep. Andre Carson said that the Tea Party is “protecting its millionaire and oil company friends while gutting critical services that they know protect the livelihood of African-Americans, as well as Latinos and other disadvantaged minorities.”

“This is the effort that we’re seeing of Jim Crow,” Carson said. “Some of these folks in Congress right now would love to see us as second-class citizens.”

“Some of them in Congress right now of this Tea Party movement would love to see you and me … hanging on a tree.”

Folks who likely never cared much for Rep. Carson in the first place are, pretty much on cue, hitting the ceiling, clutching their pearls, getting the vapors, and heading for the fainting couches.

Rep. Carson is alluding to the days of Jim Crow when, like it or not, lynching was a problem. Now, let’s start here: do Tea Partiers want to lynch black people? There might be a couple, but that’s probably about it.

So why might the allusion occur to Rep. Carson? Because he has an irrational need to tell lies about the Tea Party? I doubt it. I think it starts here: “We need to take our country back.”

Yet the speech that opened the Nashville event yesterday, an address greeted with whoops and cheers from the mainly white audience, reflects a movement that also appears to have a less attractive side to it.

Tom Tancredo, a former Republican congressman who ran for president in 2008 on an anti-illegal immigration platform, said of the voters who elected Mr Obama: “They could not even spell the word ‘vote’ or say it in English and they put a committed socialist ideologue in the White House — Barack Hussein Obama!”

Decrying America’s multiculturalism, Mr Tancredo said that Republicans and Democrats had voted for a black man because they felt they had to. To a standing ovation, he shouted: “We really do have a culture to pass on to our children: it’s based on Judaeo-Christian values.”

“This is our country,” he declared. “Let’s take it back!” He added, to applause: “Cultures are not the same. Some are better. Ours is best!” The crowd, some wearing recently purchased T-shirts saying “Keep the change — I’ll keep my FREEDOM my GUNS and my MONEY”, loved it.

This is not isolated craziness from Tom Tancredo. “We need to take our country back” has been a drum beat. The question “back from whom” is rarely asked. But, President Obama is a committed socialist in the same universe where Tea Partiers are lynching black people. Somehow the socialism accusation doesn’t prompt the blood boiling pearl clutching that these Jim Crow allegations from Rep. Carson have.

Now, what must this “take the country back” business sound like to the part of the American population from whom the Tea Party wants to take the country back? What does “back” mean to them in historical terms? In some cases it’s lynching; in a lot of cases it’s a deprivation of civil rights.

But, when Matt Tully’s editors tell him to drop everything and go report on Rep. Carson’s “hanging from trees” comments; I’ll bet they’re not looking for a nuanced discussion. They’re looking for a story on how Rep. Carson has hurt the feelings of folks like Sen. Banks who is outraged and offended and, consequently, demanding an apology.

Perhaps it’s because I’m on the other side of the fence on (just to take an example — not seeking to describe the universe of topics where political rhetoric gets overheated) reproductive rights, but I don’t see this kind of push for political food-fight coverage every time a pro-life lawmaker refers to “baby killing.” In part, I think that’s because the Left doesn’t do outrage and taking offense nearly as effectively.

Now, if you’ll excuse me, all of this unpleasantness has left me quite unsettled.

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Former Congressman, Lee Hamilton, has a good column in the Evansville Courier Press on the subject of contradictory constituent demands. Basically, they want more with less and, if sacrifices are necessary, they should be made by someone else. General lobbying demands are at odds with specific demands.

He singled out the Business Roundtable for using anti-deficit rhetoric while “it consistently lobbies for a higher deficit” in the form of corporate tax breaks and infrastructure spending. But the criticism applies equally to all the groups that lobby to help themselves and their members, usually through specific tax cuts or spending initiatives, while expressing concern over the deficit.

To help things a bit, he suggests:

We can do the basic work asked of us by our democracy: Learn our facts, know what’s fact and what’s opinion, keep a broad perspective, understand the overall problem legislators must resolve, remember that what’s good for us might not be good for our neighbors, and think through the implications of our positions.

Good luck with that.

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Maureen Groppe, writing for the Indianapolis Star, has an article (h/t Advance Indiana) on Citizen Bayh who, you might remember, retired from the Senate with a great deal of sanctimony bemoaning special interest influence and a lack of public spirit.

A funny thing happened after his retirement, however. Bayh took on a bunch of jobs that reflect special interest influence and a lack of public spirit. But, one presumes, they pay well.

He is a partner in the Washington office of the McGuireWoods law firm; a senior adviser in the New York-based private equity firm Apollo Global Management; and a contributor to the Fox News Channel. On Tuesday, Bayh was named to the board of directors of Cincinnati-based Fifth Third Bancorp. And, now he’s also working for the U.S. Chamber of Commerce.

Bayh said he’s amused by criticism that he’s trying to cash in on his Senate career, which included service on the Senate banking committee.

“I’ve asked no government official for anything,” Bayh said. “If people want to hire me, it’s because of my knowledge and because I can give sensible advice, not because I’m attempting to wield influence.”

He’s either delusional or thinks we are if he’s serious in thinking that all these people are hiring him because he’s just such a sensible, knowledgeable fellow. He’s like the rich kid with all the cool toys who thinks people are always coming to his house simply because they think he’s a really great guy.

They forgot that he’s also holding down a third job as a lobbyist and a forth job with Apollo Capital Management as a private equity rainmaker. That’s a lot of jobs for one man, especially since in a few years he’ll be eligible to double-dip on pensions as a former governor of Indiana and a former senator.